And we all know how this will turn out: within weeks of this new spirit of bipartisanship, Mitch McConnell will begin filibustering everything in sight. Harry Reid will go on the news and whine about McConnell betraying their deal. McConnell will publicly mock Reid for being the weakest Senate leader in the modern era, and Harry Reid will take the floor with a tearful apology to Merkley and Udall for not going with their plan.

And another Senate session is lost.

Joe’s pretty hard on Harry Reid, and Reid deserves plenty of scorn, but there were a lot of other Democrats who didn’t want filibuster reform, for two reasons. The first is the misguided belief that if they don’t change Senate rules with a majority vote, Republicans will refrain from using the so-called nuclear option when they have a majority. That’s thinking like a chump, plain and simple: a majority of Republicans will change whatever they fucking please whenever it pleases them as long as they see advantage in doing it. The second reason that old codgers like DiFi, Levin and Baucus didn’t want filibuster reform is that it allows them to work both sides of the fence. When a bill has support of a majority but not 60 voters, they can blather on about how they’d vote for the bill, secure in the knowledge that an actual vote will never happen. This allows them to mollify supporters with happy talk while keeping those corporate campaign dollars rolling in.

There’s a lot of talk on this blog about the inevitable Democratic majority, but how many more voters do Democrats have to gather before their agenda actually becomes law? The Republicans out-gerrymandered Democrats to keep the House, they’re working to slant the Electoral College in their direction, and they just won a big victory in the Senate that will let them obstruct for two more years. As DougJ memorably said, Democrats are still coming to a knife fight with a tote bag, and we keep getting cut.

@Gin & Tonic: No, the “nuclear option” – which means exercising the power to change the rules at any time despite Senate rules that say that power doesn’t exist – is always available. The “constitutional option” – which means exercising the right to change the rules on the first day because none exist – is what is now gone.

MisterMix gets close to identifying a big part of the problem. Senate Dems have taken one lesson from Republicans: Never ever actually act on the agenda that you’ve promulgated to the voters.

Republicans have been promising to do something about abortion, church-state separation, and a host of other social issues for decades now. When Republicans had all of the power needed during Bush’s presidency, they did precisely nothing about any of those things (other than continued grandstanding). Because Republicans know that delivering on their promises to rank-and-file voters deprives them of the rabble-rousing issues that gets those voters out to the polls and reliably puling the “R” lever.

Democrats have come to understand the same thing. So they’ll posture about issues dear to us while never voting for those issues, or even actively voting against those issues. ’cause they know we got nowhere else to go!

What the hell are we going to do about this? Back in the aughts GOS thought the path was to elect Dems & then elect better Dems. People here still whine relentlessly about the effort to do that by unloading Lieberman.

If the only option we are allowed is to support whoever wears a ‘D’ then this is the best we can do.

Give that the goopers proved they do not care about public opinion during the union busting, teacher-breaking, right to work for what I feel like paying you and you’ll like it efforts of 2010 & 11 I don’t think public shaming will stop them from gerrymandering the electoral college. Control of the House is guaranteed and another Republican in the WH despite losing the election is a very strong possibility.

These goddamned Dems better figure out nice and polite is not cutting it. Expecting good intentions or honest dealing from the goopers is threatening the existence of the nation.

@Derelict: Even Reagan couldn’t be bothered to show up at the National Right to Life marches, addressing them via speaker phone.

The Senate is by design an anti-democratic institution. It was meant to “temper” the House which was elected by the common man. Hence the 6 year terms and election of only a third of its members every two years. How this relates to what Harry did is another question. Don’t be under the illusion that the Founders thought very highly of us regular folks. The Seante is the proof of that.

@PeakVT: To expand, the Senate has created a principle that says because 2/3 of the members continue between Congresses, it is always in session, and thus its rules never wink out existence like they do in the House. I have two objections to that principle. One is that there’s nothing about it one way or another in the Constitution. The second is that it leads to absurdity. Imagine this: in 2014 the Republicans gain 68 seats in the Senate, one more than is required to change the rules. They do nothing for two years and lose badly in 2016. On the last day in December they change the rules to require 80 votes to overcome a filibuster and 100 votes to change the rules. According to current Senate principle those onerous rules would be binding until the end of time unless Dems took 100 seats, which would in practice would never happen. To me, that’s an absurd outcome. The “nuclear option” would basically invoke a more basic principle that a legislature can never bind a future legislature. (Details of the procedure are out there on the web). The constitutional option would assert that the Senate rules don’t exist on the first day of the session. (Specifically, I think proponents say the rules can be changed by a simple majority on the first day, but essentially that’s the same thing as saying the don’t exist, but with a nod to tradition.)

All the above is separate from whether or not the filibuster itself is constitutional, but the courts have said they’re not going to get involved in that debate, for better or wrose.

Actually, the Republican have the best of both worlds. They can shilly-shally in Congress and enact their legislative agenda in the states cause the outrageousness isn’t even reported unless it’s about rape.

@Commenting at Ballon Juice since 1937: Because the dynamic the next 2 years could have been “Obama proposes very sensible, popular legislation [background checks, immigration, etc], Senate passes along party lines with Dem support, dies in House at hands of crazy GOP” That, in turn, enhances your ability to take back the House in 2014 and actually pass an agenda.

Or, if enough Goopers in more middle ground districts felt the pain from their constituents long enough, you might actually break their unity (like with the debt ceiling issue) and get something passed.

Were an army of Mongols marauding through the midatlantic states, the senate would hold up raising an army if it meant giving up their ability to block district judges in the future. It’s not a wonder we opted to have a standing army.

Honestly I feel like we’re going to have to sacrifice a bit of the social safety net for the country to be governable. Democrats just aren’t ideologically unified enough to mobilize against the filibuster. Thus we’ll need Republicans to retake the presidency and Congress for somebody with the stones to ditch it. That’ll mean at least 2 years of conservative hell, but at least we’ll be able to change the laws when we are back in power.

Or maybe McConnell stabbing them in the back and obstructing everything again will be enough to convince Dems to finally change the rules next time. I doubt it though.

Yesterday, the Court of Appeals for the DC Circuit killed the recess appointment. They issued a sweeping opinion that basically says that recess appointments can only occur if a) a vacancy opens up between two Congressional sessions, and b) the appointment to that vacancy is made between those two sessions.

So, in other words, recesses during a session (e.g. at the end of 2013, when Congress recesses for Christmas and New Years) no longer count. The only recess that counts is the one we just came through (when the 112th Congress recessed and before the 113th began) and won’t see again until around January 3, 2015 (when the 113th Congress will adjourn and before the 114th Congress begins).

This year, that recess was exceedingly small because of all the fiscal cliff shenanigans. Congress was in recess for perhaps a matter of hours.

So, according to the Court of Appeals, if someone had resigned during those hours, President Obama could have recess appointed a replacement. Otherwise, the appointment must go through the Senate for advice and consent.

So why does this matter and how does it relate to the filibuster deal?

We are all familiar with the concept of filibustering certain extreme nominees. It’s been going on for decades, probably longer. We’ve filibustered some of theirs (John Bolton for U.N. ambassador and Miguel Estrada for the D.C. Court of Appeals). They’ve filibustered some of ours (Caitlin Halligan for that same court; Richard Cordray for the CFPB). And one tool Presidents have used to counter this is the recess appointment. So President Bush recess appointed Bolton as U.N. Ambassador, and President Obama recess appointed Cordray to head the CFPB. Both of those appointments would be invalid under the new ruling that was announced Friday, because they didn’t both occur and get filled during the small window that happens every two years.

Moreover, Republicans are now going further, and in a way we can’t really match. They have been using the filibuster to destroy whole agencies, even when they don’t have the votes to do it outright. So the NLRB, which is supposed to have a five-person governing board, is down to two people because the Republicans in the Senate refuse to allow the confirmation of anybody. It’s not simply that they think President Obama’s picks are too extreme and they want him to pick someone more conservative. They don’t want anybody. They want the NLRB dead. So while a deal was (barely) struck in 2010 to fill two of the five vacancies, the Republicans have not allowed the other three vacancies to be filled.

Yesterday’s case was about those vacancies — President Obama had used his recess appointment power to fill those vacancies around this time last year. You may recall that the House (under Speaker Boehner’s leadership) was staying in pro forma session precisely so they could prevent recess appointments. President Obama did it anyway, taking the position that a pro forma session where once a day, the House gavels the session open then immediately adjourns, counts as a recess. That’s what was before the Court — President Obama’s position that it was a recess against the Republicans’ position that it wasn’t. But the Court went further and said, in essence “It doesn’t matter, because the recess appointment power applies only to one very particular kind of vacancy that occurs during one particular kind of recess.”

This gives the Republicans the power, once and for all, to kill the NLRB without doing it in the daylight by introducing legislation to get rid of the agency. Instead, they just need to kill the nominations of anybody President Obama might appoint. They can do the same to the CFPB, and any other agency they don’t like. We don’t really have a counter on our side because there aren’t really government agencies we oppose in principle. We want to build, they want to destroy, and the Court of Appeals has just handed both of us a lifetime supply of kerosene and a book of matches. It doesn’t do us much good, but it’s going to allow them to burn the government to the ground.

Except.

Except this filibuster deal short circuits that. Because now, we’ve taken away their ability to wholesale block appointments. If this means President Obama’s nominations to the NLRB and the CFPB and the ATF and a whole host of other agencies the right hates are going to get actual up-or-down votes — and I haven’t seen much writing on that aspect of the deal, so I don’t know how strong those guarantees are — but if it does, it’s a big win. And it’s a just-in-time win, thanks to the Court of Appeals, which just lobbed a huge grenade right at the heart of good government.

So while there is a lot to dislike about this deal, I’m extremely grateful that it gives us a path to getting our executive agencies running over Republican objections at a time when the Court was closing down the path we had been taking.

The reason why so many of the old guard Democratic senators don’t support doing things dramatically differently with the filibuster has fuck-all to do with fake-“mollifying” and socking away campaign cash. It’s because they don’t want to give up the special powers attached to their jobs, jobs they have held a very long time. And they remember being in the minority, and want to have the tools to obstruct if they end up in the minority again. Will they actually use them? Probably not, because they tend to chicken out. But that’s definitely _how they think_. They shouldn’t, but they do.

I think the problem of ceaseless obstruction is so bad that I’d be more than happy to see the filibuster get nuked forever. Maybe when Republicans win they should get to appoint bigoted judges and drill for oil in wildlife preserves. And when Democrats win they should get to do what they were elected to do too. But senators like to have power, and they don’t like to give it up. It’s like wanting professors to give up tenure.

@Trakker: Reid’s primary problem is that he’s trying to herd 55 people who all have separate power bases that the national Democratic party has very little influence over. Many of those 55 also fancy themselves as legitimate presidential candidates. And the evolution of Senate practices over the past decade or so has given each of them significantly more power. How’s he supposed to force them to do anything?

@PeakVT: Yeah, I haven’t understood the drive to single out Reid for vilification either. It looks to me like he was bluffing that there ever were 51 votes to do anything major, and consequently he eked out a deal that moves the ball down the field minimally.

Republicans have been promising to do something about abortion, church-state separation, and a host of other social issues for decades now. When Republicans had all of the power needed during Bush’s presidency, they did precisely nothing about any of those things (other than continued grandstanding).

That’s a bit of an exaggeration. They did do some stuff on those topics- Bush’s pushing of faith-based initiatives is a good example of chipping away at separation of church and state- which is closer to their real policy. What they’ve gotten good at is a sort of Zeno’s paradox approach, where they’re delivering enough on the issue to prove their commitment to the cause but leaving enough undone to keep the issue open as a source of votes.

It’s actually the evil genius of Republican Senators refusing to officially adjourn a Senate session and technically keeping the Senate in session, though no work gets done.

Not quite. I’m sure that Reid would love to recess the Senate if for no other reason than to let Obama make recess appointments, but he’s being blocked. The Constitution specifies that neither house may adjourn for more than three days without permission of the other house (Article 1, Section 5) so the House can block the Senate from going into recess by holding pro forma sessions of their own.

Fuck this “comity” crap. McConnell needs to be kicked to the fucking curb, and then stomped in it. Make sure that Senator Tribble-on-his-head is kicked down and stomped at the same time while you’re at it.

There is nothing simplistic and moronic about scapegoating Harry Reid for failing to singlehandedly defeat an entrenched status quo in the face of intransigence from deeply invested egomaniacs within his own narrow majority. Nope, nothing at all.

At the risk of sounding like a firebagger, there’s another reason. Some Democrats in the Senate (not that many, but enough) desire pro-corporate outcomes, but count on votes from more progressive voters to keep getting elected. Schumer’s a prime example of this; he plays a Democrat well, but he’s joined at the hip to Wall Street. Reid seems to bounce back and forth. So the fact that they are on record as voting correctly, only to have the progressive measure shut down by a filibuster, suits them just fine.

I’m not sure I’m upset about this. The ability of 40 senators to block legislation was a pain in the ass, but as the article points out we’ve used it to block some very ugly bills. I’m ambivalent there. It certainly wasn’t the worst abuse of the Senate rules.

The worst abuse of the Senate rules was the ability of one or two senators to block legislation and appointments with secret holds and by slowing things down to a crawl where only a tiny amount of legislation can even be considered. That seems to have been removed. I think. The article is so damn vague…

I just read Robert Caro’s latest on LBJ. Interesting that LBJ’s first legislative act as President was to cave utterly and completely to Sen. Harry Byrd on reducing the federal budget in order to free up Congress to pass tax cuts and civil rights bill.

@Joe Buck: Mistermix says that in the post. I think you both overestimate the degree to which repeatedly re-elected Democrats who are well-entrenched in their Senate seats fear a backlash from progressive voters who avidly follow the news. That’s not a large group of people.

@eemom:
The constant kneecapping by people who are supposed to be on his side must get really old to Reid. I’ll be very sympathetic if he decides to retire as majority leader just to avoid having to put up with this crap.

Thanks so much for that. I didn’t understand how the recess apt. might work with the filibuster so that part was missing.
There’s an additional angle to Cordray. If Republicans blocked the nom, Cordray would return to OH and present a serious challenge to Kasich (OH gov race). So that was the leverage they had on Cordray. Republicans would want to keep him in DC a little longer.

I don’t blame Harry Reid, I blame the shortsightedness of Democrats who think “Well, we want to be able to obstruct Republicans if they are in power so no big deal.” Elections should have consequences and the country should be governable. If getting that means conservatives can pass conservative laws when they are in power then so be it. Small price to pay for a functioning Senate.

In the 2014 US Senate elections, the Democrats will be defending 20 seats, the Republicans 13. Of these Democrats, veterans Harkin and Rockefeller have already announced their intention not to seek re-election; Carl Levin and Tim Johnson (SD) have yet to decide. In the Confederate Party, only Chambliss thus far is retiring and there are conflicting reports about Cornyn; Thad Cochran (MS) has yet to announce.

My great fears, expressed regularly here last spring/summer, that the Democrats would lose their Senate majority in the November election happily were not realized. But as we all know, voter turnout differs significantly in presidential and mid-term elections.

Should the Confederates take control of the Senate chamber in 2014, I have no doubt whatsoever that they will not hesitate to overturn these august Senate traditions and privileges, and filibuster “reform” will be enacted. Of course, such action will be not described as a “nuclear” or “constitutional” option by the Village media. “Common sense” and “founder’s intention” will be the lyrics most often sung.

Knowing what the Confederates are capable of and seeing what they have brazenly been doing for the past four years, the timidity of Reid and other senior Democratic senators remains inexplicable, indeed infuriating, to me.

Oh the love for Reid is so much BS. Unlike the President, he actually -does- have power over the Dem Senate caucus. Just for example, he has influence over whether individual Senators get their pet bills to the floor. He could also, if he wanted, likely mobilize the party to make committee chairs and assignments more contingent on holding the party line, instead of individual preference and seniority.

“Majority leader” is not an honorific. He just chooses not to exercise those power over his caucus fully.

I agree with someone in the earlier comments that Reid probably did not have 51 votes to pass the Merkley/Udall reform. But probably came close.

And if McConnell and his caucus obstruct for the next two years as they have for the past four, maybe there will be 51 votes in 2015. Change comes in small increments; especially among those who have small penises and no testicles.

I would love for them to get rid of the filibuster in 2015, but they won’t because Obama will still be President.

The only faint hope for the near future is that Dems retain the Senate for the start of the 114th in 2015 and have learned their lesson. Otherwise you need Republicans controlling the Presidency and the Senate to see it gone.

PS that doesn’t mean I think DiFi, Leahy, Baucus, et al should get off easy other. But let’s not soft-peddle what’s going on here. Dems don’t line up because they don’t want to line up, and so they elected a leader who would not, by and large, make them line up. And Reid has honored that tacit agreement.

Not really on the first point… it’s only called the “nuclear option” because at the beginning of a session it only takes 50 + the VP to change Senate rules instead of the normal 67. It’s not really nuclear if you have 67 votes for it.

Glad to hear that from you (you’re a resident there, yes?). I had read accounts that Gov. Bob McDonnell’s expressed disavowal of the Electoral College maneuver by the VA legislature was related to his Senate campaign calculations.

ETA: Not that your residence has anything to do with your customary shrewdness.

Do you have an actual rebuttal or point to make? No? Then let the adults talk.

Blow me, firebagger. “Holier than Liberals” progressives have been fucking up the works with the stupid shit you’re saying for the past 40 years, and you see the result every time a conservative winds up running things – which is often, thanks to folks like you.

@FlipYrWhig: I replied to this in a thread yesterday (?) but was very late, so you probably did not see it.

I asked Sen. Leahy about the filibuster. He is in favor of the Merkey-Udall plan. When he said he was “struggling with it” he is coming at it from the left, not the right. He wants the stronger version.

@Roger Moore: I think it’s more they’ve chosen the state and local level as the battlefield for their pet social issues, figuring that it’s harder for their opponents to fight back against hundreds of bills being proposed across the country.

Of course McDonnell has national ambitions, whether Senate or presidential — but it wasn’t his threatened veto that brought it down, it was actual republican state senators.

I trust no one here will accuse me of insufficient cynicism, and I am on record that it is not possible in today’s world to be both an elected republican official and a decent human being…..nevertheless, I can’t help but wonder if maybe just a few of these people once in a while can’t sleep at night….get up and look at themselves in the bathroom mirror and think holy shit, what have we BECOME…

@eemom: I think they backed down because as soon as a state goes to electoral votes by congressional district, it will never ever be a battleground state. Which means a LOT less money in the state during election season – no ads, ho hotel bills, no restaurant bills, no attention from the national media. It’s not just a thereotical electoral issue, it’s real money and real jobs.

@kay: Yeah, I don’t really know if we’re better off with Cordray serving as head of the CFPB or with him kicking Kiasich out of office. I suppose it depends what the alternatives are — who else could run CFPB, and who else could we run in Ohio against Kasich. And, of course, where Cordray wants to try to make his mark. But the point is that whoever President Obama decides to appoint to run CFPB, under the deal that was struck, the Republicans can’t filibuster the nomination (or, more accurately, they can only filibuster it for 8 hours).

@Michael: Wait, how can he “mobilize the party” in this hypothetical way? Wouldn’t that be the same thing all over again, trying to convince senators to give up perks in the service of some other objective? Seems to me that the same people who don’t want to muck around with the filibuster would also, probably more so, not want to muck around with seniority and committees. And then we’re back to square one.

Where did all you surrender monkeys come from? One little setback or two and you give up and start calling Harry Reid names? Btw, you’ve already forgotten that Mitch the Bitch caved like a coal mine during the fiscal cliff, while claiming victory in a fundraising email… It’s clear Reid knows where his weak point is, lol.

We’re better off with Cordray at the CFPB. He’s only 53 and he would be better off running for an open gov election so (theoretically) we coukd have both.
I just thought it was amusing because it’s akin to the Warren situation. They’re so completely captured by finance interests they MUST STOP that agency no matter the collateral costs to the broader interests of the GOP.
OTOH, Obama and Cirdray are tight, Cordray was the only major OH pol to endorse O over Clinton in 08, and we could just re-run OFA 2012 to beat Kasich, which would be fun to do.

@I’mNotSureWhoIWantToBeYet:
I looked at the exceptions. The major exception of judges appears to be because in the next section district judges are assigned to be even LESS susceptible to delays. It looks like they can still hold up cabinet level posts all they want. Not sure what a ‘level 1 Executive’ post is – ah, thank you Google. This page tells me it’s cabinet secretaries and a couple of others. ‘Chairman of the Federal Reserve’ seems to be the most vulnerable.

EDIT – The new rules don’t tell us what old rules have been removed, so that’s also a thing.

LoL, I told you munchkins a long time ago that the filibuster would be here to stay, and in the form that makes it easy to block a bill from passing the senate. There are many many decades of senate drama that brought us to the current crux of the matter. you either have a minority right to block a bill, or you don’t, and creating extra hoops but with the same endgame, just wastes more precious senate time. Reid played his part with keeping the emoprogs quiet for the election, so the rest of us could have some fucking peace, and concentrate on beating the wingnuts. Good to know it worked, good job Harry!

And on the question of predicting what the wingnuts will do in the future, is, in it’s self, positively wingnut, through through, i say we build those FEMA reeducation camps just because for sure republicans will.

@ruemara:
I have seen Barbara Boxer mentioned as another opponent of meaningful filibuster reform. I’m very unhappy about this. It has caused me to rethink my priorities. From now on I’m only going to focus on issues and although I don’t rule out giving money and time to Dem candidates (I might send Ashey Judd some bucks), I won’t do it nearly as much as I did over the last eight years.

Guys, seriously. The following is not actually a compelling defense of Harry Reid: “Reid isn’t a weak majority leader. He simply has no influence over the members of his own caucus.” And loading the argument up with contempt for people who disagree doesn’t make it any stronger.